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On February 4 2020, the Constitutional Court handed down a judgment declaring a decision made by the Pretoria High Court to be correct.
In the matter of AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others; and Minister of Police v Amabhungane Centre for Investigative Journalism NPC and Others, CCT278/19 and CCT279/19, the Constitutional Court found that provisions of the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 (RICA) were unconstitutional on the basis that they failed to fully comply with the rights to privacy, freedom of expression, legal privilege and the rights of access to courts.
AmaBhungane Centre for Investigate Journalism NPC and Stephen Sole (the applicants) brought several complaints to the high court, and the Constitutional Court agreed with the high court’s decision in that RICA was an infringement on various constitutional rights.
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This decision was taken while considering the importance of state surveillance, which is used for purposes of crime prevention and to maintain public order.
The Constitutional Court agreed with the High Court decisions with the following reasoning in respect of the unconstitutionality of RICA:
- 1. On the issue of notification, the Constitutional Court found that RICA ought to give individuals notification after they were subjected to surveillance. RICA continued to conduct surveillance on members of the public without giving them post notification. This action denied members of the public a chance to seek legal redress as their right to privacy had been infringed.
- 2. On the issue of independence, the Constitutional Court made the following finding: In terms of RICA, the minister of justice had the right to appoint a judge to decide on whether surveillance may take place. RICA did not state the designated judge’s term of office and thereby allowed for unfettered discretion in the hands of the minister, which did not consider the views of independent regulators. This was declared unconstitutional as such decisions ought to be managed and transparent.
- 3. On the issue of RICA obtaining permission to conduct surveillance on an ex parte basis, the Constitutional Court made the finding that such was unconstitutional. This is because RICA lacks safeguards when exercising this power. The Constitutional Court declared that Parliament ought to revise these measures.
- 4. On the issue of management of information, the Constitutional Court decided the following: that information that has been intercepted was subject to no regulations as to how such information was stored and destroyed, which is an invasive infringement of privacy. RICA allows the interception centres unbound freedom to manage the information. The Constitutional Court found RICA to be unconstitutional in this regard.
- 5. On the issue of information intercepted from journalists and legal practitioners, the Constitutional Court made the following finding: legal practitioners’ information ought to be protected by legal professional privilege as such goes hand in hand with the right to a fair trial and fair hearing. Journalists’ sources ought to be protected by the right to freedom of expression. RICA had thus breached these confidentiality rights and was declared unconstitutional.
The effect of the judgment is that the Constitutional Court has suspended the invalidity of RICA for a period of three years to allow Parliament to revise the act to establish sufficient safeguards to protect the public.
However, due to the urgency of some of the rights that were infringed by RICA, interim relief was granted on the issues of notification after surveillance and confidentiality for information shared with legal practitioners and journalists.
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Whether Parliament successfully revises RICA in a manner that is constitutionally sound is yet to be seen. However, one must ask the question of how Parliament was allowed to pass such an invasive piece of legislation in the first place and whether the public’s right to privacy is truly protected.
- Marco Schepers and Taariq Valli are attorneys at Tabacks attorneys
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